More Surprises on Surprise Billing: Will Federal or State Law Control?

When introducing the No Surprises Act (“NSA”) – signed into law on December 27, 2020, as part of the Consolidated Appropriations Act, 2021 – leaders of the responsible committees of the U.S. House of Representatives announced that they had “reached a bipartisan, bicameral deal in principle to protect patients from surprise medical bills and promote fairness in payment disputes between insurers and providers, without increasing premiums for patients or interfering with strong, state-level solutions already on the books.” In other words, Congressional intent was that federal surprise billing protections would not preempt already enacted state-level surprise billing protections. While the U.S. Office of Personal Management and the Departments of Health and Human Services, Labor, and the Treasury (the “Departments”) issued an interim final rule with a request for comment (the “First NSA Rule”) on July 13, 2021, that in part attempted to clarify the interaction between state laws and the NSA, the question of whether federal or state law controls remains complex given the wide variation in states’ legislative efforts to address surprise billing and the evolving list of variables stakeholders must consider when implementing the NSA.

This article provides an overview of the concurrent jurisdiction Congress created through the NSA and discusses key issues stakeholders should consider as the Departments continue to release regulations in preparation for the NSA’s January 1, 2022, effective date.